The Risks of and Reactions to Underdeterrence in Torts


The Risks of and Reactions to Underdeterrence in Torts posits that as our nation considers tort reform at both the state and federal levels, it should not be blinded to the fact that, while tort law may, in some cases, overdeter, it also may underdeter, especially in mass tort cases. The piece contends that the traditional (one-on-one) model of tort law may both cause and exacerbate the underdeterrence problems and, consequently, alternative models (class action, augmented awards, and public tort suits) must be considered and analyzed. The piece proceeds to compare and contrast the strengths and weaknesses of each of the various approaches for different types of cases. The article builds upon earlier works on augmented awards and public torts, and this piece both expands upon that work and extends it. It presents both a vision and a theoretical view of mass torts that is too often ignored in today’s debate about tort reform.


Law and Economics | Legal Remedies | Litigation | Torts

Date of this Version

February 2005